Loading...
HomeMy WebLinkAbout02-09 CommentsCLA1 KE COUNTY Mark Cheran Frederick County Zoning Administrator 107 North Kent Street Suite 202 Winchester, Virginia 22601 Subject: Double Tollgate Flea Market Dear Mark, I am writing this letter in regard to our meeting today concerning the structures used in retail merchandizing and also several storage bins believed to be located in Frederick County. The subject property is owned by Royston Eshelman Properties and is located near the intersection of Routes 522 and 277. The property contains 5.13 acres with the vast majority of the acreage located in Clarke County and zoned Highway Commercial and with a small portion of the property located in Frederick County and zoned Rural Areas. Clarke County does allow retail uses in Highway Commercial, although it has been found that a number of the retail use structures are actually located in Frederick County where such uses in that zoning district are not allowed. I am aware that Royston Eshelman Properties has made an appeal to the Frederick County Board of Zoning Appeals. I recently became aware that Joseph Brogam conducted a new survey for the subject parcel. Although the survey is nearly identical to an earlier survey of the same parcel, the County line in the new survey is shown as being approximately 70 feet further west from where the Clarke County and Frederick County GIS Departments have shown on their mapping systems. Due to the location and angle of the Brogam determined County line, certain structures initially determined to be in Frederick County may now be in Clarke County. As we discussed earlier today, the issue of the County line needs to be resolved and this may include having VDOT involved in future discussions. Mr. Brogam stated to Gary Pope, the Clarke County Building Inspector, that he used data from a past VDOT survey. We have asked Mr. Brogam to provide the pertinent VDOT documents in order to confirm his County line location. As of this time, we have not received the VDOT documents. 101 Chalmers Court, Suite B Berryville, Virginia 22611 www.clarkecounty.gov (540) 955-5132 Fax (540) 955-5180 Regardless of where the County line is eventually determined to be, there are several things that need to be clarified for the property owner and your Board of Zoning Appeals. They are as follows: I) It was determined that two of the structures in question that are located in Frederick County as shown by Brogam, were actually issued a permit by Clarke County. Those structures are owned or leased by a Mr. Neikirk and Mr. Brain and are shown on the attached survey. Since Clarke County issued permits for these structures, we will honor those permits and allow the structures to be relocated in the Clarke County portion of the subject property without a site plan amendment, although all other applicable permits and fees will be required. 2) It is my understanding that several storage bins are situated on the Frederick County portion of the subject property. Clarke County will allow for their relocation into Clarke County without a site plan amendment but with all applicable permits and fees. 3) In accordance with the Brogan: survey, there appears to be six additional retail business structures that now appear to be located in Clarke County. They are identified on the attached Brogam plat as McCarty, Sanchez, Cave, Solton, Brown and Cooper. None of these structures were approved by either the Clarke County Zoning or Building Departments. If Royston Eshelman Properties wish to establish these structures within the boundaries of Clarke County as mutually agreed upon by Clarke County, Frederick County and VDOT, then a site plan amendment would be required and acted upon by the Clarke County Planning Commission. In accordance with the County Zoning Ordinance, a copy of the site plan would be sent to VDOT for comments. In my experience, VDOT would then require the property owner to upgrade his entrances to the site to commercial standards and provide for at least one turn lane off Route 522. The cost of constructing the VDOT improvements would be quite costly, although this will have to be the decision of the property owner. If the property owner decides against applying for a site plan amendment, the structures in question would have to be removed from the property or demolished. If the vendors of the subject structures wish to continue selling on the flea market site, they could do so from one of the existing vendor tables as currently established in the Clarke County portion of the site. esse Russell Zoning Administrator C: Gary Pope, John Trenary and Royston Eschelman Properties Corresp/flea market letter to cheran Mr. Mark Cheran Zoning & Subdivision Adminstrator Frederick County Department of Planning and Development 107 N. Kent St. Winchester, VA 22601-5039 RE: ShenValley Flea Market at Double Tollgate Appeal Application #02-09 of Royston Eshelman Properties LC November 12, 2009 It should be promoted, not penalized! We have recently learned of the predicament of the ShenValley Flea Market and that it is in danger of being shut down due to zoning and legal technicalities. We have attended this flea market every weekend for years and know that it is a pleasant outdoor market. Over the years, in talking with both vendors and attendees, we have found that this flea market draws people from all around the DC area, from all parts of Pennsylvania, central West Virginia and from parts of Virginia several hours south of here. People are willing to drive for multiple hours to get here because there is no other flea market like this anywhere else in the region. The flea market is something people want. Many of these visitors, our own relatives included, do other things while in the area, so the closure of this flea market would have economic impacts beyond just what happens on their grounds. It is located in a corner of Frederick County where not much else is going on so there is no reason to close it. On weekends with nice weather, especially in the spring and fall, thousands of people must be visiting the flea market throughout the course of the day. Regulations need to change to be flexible to reflect what people want. We understand that Frederick County's "no flea market" ordinance took effect in 1967. It's time to update that ordinance or provide a variance to allow a market that has been in place since 1985 to stay. While this flea market has been very popular for all of the years we've been attending, with the present state of the economy, it is now an economic necessity for many people. After being open for nearly 25 years, it's hard to believe that you hadn't noticed and are now going to enforce an ordinance. Find a way to deal with the technicalities and allow the flea market to continue at its present size and location! Thank you! d7 <�Y Stuart and Diane Unger - PO Box 398 :'`C)V 1 6n Middletown VA 22645 October 19, 2009 Royston Eshelman Properties P. O. Box 221 1 White Post, VA 22663 COUNT X of FREDERICK Inspections Department John S. Trenary, Building Official 540/665-5650 Fax 540/678-0682 RE: That portion as is contained in Frederick County, Virginia of the entire property located at 3700 Stonewall Jackson Highway, White Post, Virginia, as such entire property is described in a deed from Audrey F. Funkhouser, Executric of Charles C. Funkhouser, et al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of the Circuit Court of Clarke County, Virginia, in Deed Book 78, at Page 33, containing 5.13 acres, more or less. Dear Sirs: On October 9, 2009, permit applications were dropped off for the above mentioned property. This letter is to inform you that those permit applications can not be processed until functional design approval is granted under Section 103.11 of the Virginia Uniform Statewide Building Code by the County Zoning Department for location placement of these structures. (note the attached letter of violation dated 8-31-09) If you have any questions, please do not hesitate to contact this office. Sincerely ,1 "John S. Trenary, CBOT Building Code Official cc Mark Cheran, Frederick County Zoning Administrator Rod Williams, County Attorney Robert J. Light, Attorney Attachment 107 North Kent Street - Winchester, Virginia 22601 COUNTY of FREDERICK V540/665-5651 Department of Planning and Development SENT VIA CERTIFIED MAIL FAX: 540/665-6395 August 31, 2009 Royston Eshelman Properties c/o Mr. Mark Eshelman PO Box 221 White Post, VA 22663 RE: The entire portion of property contained in Frederick County, Virginia, located at 3700 Stonewall Jackson Highway, White Post, Virginia; such entire property is described in a deed from Audrey F. Funkhouser, Executrix of Charles C. Funkhouser, et al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of Court of Clarke County, Virginia, Deed Book 78, at Page 33, containing 5.13 acres more or less. This property is zoned (Rural Areas) Zoning District. Dear Mr. Eshelman: I visited the above referenced property on June 26, 2009, with the Frederick County Building Official in response to a complaint regarding a structure being built without a building permit. My inspection of the property noted several structures built without permits, as well as a flea market, with other commercial uses, being operated on the property. In accordance with Section 165-101.07 of the Frederick County Zoning Ordinance, any structures built within Frederick County are required to have obtained a building permit. The presence of these structures on the above -referenced property constitutes a violation of the provisions of Section 165- 101.07 and is not allowed. In accordance with Section 165-401.02, the presence of commercial activities, i.e., Shen -Valley Flea Market, and other commercial uses within the flea market, constitutes a violation of the provisions of Section 165-401.02 of the Frederick County Zoning Ordinance, and is not an allowed use in the RA zoning district. This office will allow thirty (30) days from receipt of this letter to resolve these violations. Resolution of these violations may be accomplished by applying for building permits to remove the buildings from the property; theses structures are being used for commercial uses. The flea market and other commercial uses on the property must be discontinued. Failure to comply with the Code of Frederick County will result in a criminal complaint being filed against you. You may have the right to appeal the above notice of violation within 30 days of the date of this letter in accordance with Section 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable, if it is not appealed within 30 days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article XXI, Section 165-1001.02 (1), of the Frederick County Zoning Ordinance. 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 Mr. Mark Eshelman Re: 3700 Stonewall Jackson Highway August 31, 2004 Page 2 This provision requires the submission of an application form, a written statement setting forth the decision being appealed, the date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any other information you may want to submit, and a $300.00 filing fee. Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. If you have any questions contact me at (540) 665-5651. Sincerely, �ar' R. Cheran Zoning Administrator cc: John Trenary, Frederick County Building Official Jesse Russell, Clarke County, 102 N. Church St., Berryville, VA 22611 MRC/bad of FREDERICK Inspections Department John S. Trenary, Building Official 540/665-5650 Fax 540/678-0682 CERTIFIED August 31, 2009 Royston Eshelman Properties P. 0. Box 221 White Post, VA 22663 RE: That portion as is contained in F—derick County, Virginia of the entire property located at 3700 Stonewall Jackson Highway, White Post, Virginia, as such entire property is described in a deed from Audrey F. Funkhouser, Executric of Charles C. Funkhouser, et al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of the Circuit Court of Clarke County, Virginia, in Deed Book 78, at Page 33, containing 5.13 acres, more or less. Dear Sirs: On June 26, 2009, an inspection was made at the above referenced location. At that time, it was discovered that several buildings had been built without permits being issued and inspections performed. This is a violation of the following section of the 2006 Virginia Uniform Statewide Building Code. Virginia Uniform Statewide Building Code, Section 103.11 Functional design. The following criteria for functional design is in accordance with Section 36-98 of the Code of Virginia. The USBC shall not supersede the regulations of other state agencies which require and govern the functional design and operation of building related activities not covered by the USBC including but not limited to (i) public water supply systems, (ii) waste water treatment and disposal sys*ems, (iii) solid waste facilities. Nor shall state agencies be prohibited from requiring, pursuant to other state law, that buildings and equipment be maintained in accordance with provisions of this code. In addition, as established by this code, the building official may refuse to issue a permit until the 107 North Kent Street - Winchester, Virginia 22601 Royston Eshelman Properties Letter Page Two applicant has supplied certificates of functional design approval from the appropriate state agency or agencies. For purposes of coordination, the locality may require reports to the building official by other departments or agencies indicating compliance with their regulations applicable to the functional design of a building or structure as a condition for issuance of a building permit or certificate of occupancy. Such reports shall be based upon review of the plans or inspection of the project as determined by the locality. All enforcement of these conditions shall not be the responsibility of the building official, but rather the agency imposing the condition. Virginia Uniform Statewide Building Code, Section 108.1 When applications are required. Application for a permit shall be made to the building official and a permit shall be obtained prior to the commencement of any of the following activities, except that applications for emergency construction, alterations or equipment replacement shall be submitted by the end of the firs* working day that follows the day such work commences. In addition, the buildinb official may authorize work to commence pending the receipt of an application or the issuance of a permit. 1. Construction or demolition of a building or structure. Installations or alterations involving (i) the removal or addition of any wall, partition or portion thereof, (ii) any structural component, (iii) the repair or replacement of any required component of a fire or smoke r<ted assembly, (iv) the alteration of any required means of egress system, (v) water supply and distribution system, sanitary drainage system or vent system, (vi) electric wiring, (vii) fire protection system, mechanical systems or fuel supply systems or (viii) any equipment regulated by the USBC. 2. For change of occupancy, application for a permit shall be made when a new certificate of occupancy is required under Section 103.3. 3. Movement of a lot line that increases the hazard to or decreases the level of safety of an existing building or structure in comparison to the building code under which such building or structure was constructed. 4. Removal or disturbing of any asbestos containing materials during the construction or demolition of a building or structure., imiuding additions. Virginia Uniform Statewide Building Code, Section 113.3 Minimum inspections. The following minimum inspections sra11 be conducted by the building official when applicable to the construction or permit: 1. Inspection of footing excavations and reinforcement material for concrete footings prior to the placement of concrete. 2. Inspection of foundation systems during phases of construction necessary to assure compliance with this code. 3. Inspection of preparatory work prior to the placement of concrete. 4. Inspection of structural members and fasteners prior to concealment. Royston Eshelman Properties Letter Page Three 5. Inspection of electrical, mechanical and plumbing materials, equipment and systems prior to concealment. 6. Inspection of energy conservation material prior to concealment. 7. Final inspection. This office hereby gives you thirty (30) days from the receipt of this letter to remove the buildings or obtain the necessary approvals from Planning & Zoning and apply for the necessary permits. NOTE: Demolition permit shall be required to remove any structure that has utilities connected. If you have any questions, please do not hesitate to contact this office. Please be aware that the above is subject to appeal under Section 119 of the Virginia Uniform Statewide Building Code. Si John S. Trenary, fi ` Building Code O cc Xark Cheran, Frederick County Zoning Administrator Jesse Russell, Clarke County Zoning Administrator Gary Pope, Clarke County Building Official Robert J. Light, Attorney Rod Williams, County Attorney LAwsON AND SILEK, P.L.C. 43 CHESTER STREET POST OFFICE BOX 602 FRONT ROYAL, VA 22630 TELEPHONE: (540) 635-9415 FACSIMILE: (540) 635-9421 E-MAIL: JSILEK@LAWSONANDSILEK.COM September 28, 2009 Kevin C. Scott, Chairman Frederick County Board of Zoning Appeals c/o Mark Cheran, Zoning & Subdivision Administrator Frederick County Department of Planning & Zoning 107 North Kent Street Winchester, Virginia 22601 SEP 2 8 2009 Re: Royston Eshelman Properties, L.C. — Appeal of Zoning Interpretation DELIVERED BY HAND DELIVERY Dear Mr. Scott: Please be advised that my office represents Royston Eshelman Properties, L.C., the owner of certain property in Frederick County, Virginia, upon which a portion of the operation known as "Shen -Valley Flea Market" is conducted. My client also leases certain property in Frederick & Clarke Counties for the same purpose. For the reasons set forth below, my client is appealing the interpretation of Frederick County Zoning Administrator Mark Cheran as set forth in his August 31 letter. Please find enclosed with this letter the following: (1) Application for Appeal to the Board of Zoning Appeals; (2) Copy of Mr. Cheran's August 31, 2009 Letter; and (3) Application Fee Relevant Facts In his August 31, 2009 letter, Mr. Cheran states as follows: " In accordance with 165- 401.02, the presence of commercial activities, i.e. Shen -Valley Flea Market, and other commercial uses within the flea market, constitutes a violation of the provisions of Section 165- 401.02 of the Frederick County Zoning Ordinance, and is not an allowed use in the RA zoning district." With respect, for the reasons set forth below, we believe that Mr. Cheran's WINCHESTER ADDRESS: 160 EXETER DRIVE, SUITE 103, P.O. Box 2740, WINCHESTER, VA 22604, TELEPHONE: (540) 665-0050, FACSIMILE (540) 7224051, E-MAIL: TLAWSON@LSPLC.COM Kevin C. Scott, Chairman September 28, 2009 Page Two (2) interpretation of the Zoning Ordinance is incorrect because he fails to take into account that most if not all of the operations within a flea market are allowed uses in the RA zoning district by special permit. Consequently, Mr. Cheran's interpretation improperly precludes my client's pursuing a special permit for those permitted operations. As an additional consequence of this erroneous interpretation, my client is likewise unable to take steps to obtain building permits for certain structures located on its property. To begin, it is important to realize that a "flea market" is an umbrella concept that encompasses several small vendors. For example, there are farmers, particularly in the fruit growing industry, who sell their products at my client's site. There are also other vendors selling a variety of products to the general public for household consumption and use. Finally, there are vendors selling antiques. In addition, you should be aware that the entirety of the Shen -Valley Flea Market does not lie exclusively in Frederick County. Rather, much of the operation lies in Clarke County in a zoning district in which permits flea market operations are permitted. Relevant Statutory Authority To begin, my client concedes that the term "flea market" is not defined by the Frederick County Zoning Ordinance, and that the term is not mentioned in the list of uses specified in Section 165-401.02. However, Section 165-401.03 sets forth a series of uses that are permitted in the RA zoning district if a conditional use permit is obtained. For purposes of this appeal, the following conditionally permitted uses are relevant to the analysis: (i) "off premises wayside stands;" (ii) "country general stores;" and (iii) "antique shops." Frederick County Code s. 165- 401.03 (F), (G), (I). The term "country general stores" is defined by the Zoning Ordinance as "a retail business allowed where specified in rural zoning districts which sells groceries alongwith ith a variety of other retail goods" Frederick County Code s.165-101.02 (emphasis added). A "retail use" is likewise defined as "establishments engaged in selling goods or merchandise to the -general public for personal or household consumption and rendering services incidental to the sale of such goods." Id. (emphasis added). A "wayside stand" is any structure or land used for the sale of agricultural or horticultural produce, livestock or merchandise produced by the owner of his family on their farm." Id. According to Zoning Ordinance, any definition not specifically listed will be determined by reference to the most recent edition of Merriam -Webster's Dictionary. See Frederick County Code s.165-101.02. According to Merriam -Webster's Collegiate Dictionary, 11th Edition, a "flea market" is an "open air market for second hand articles and antiques." Kevin C. Scott, Chairman September 28, 2009 Page Three (3) Analysis In applying the above County ordinance provisions to the facts and circumstances of my client's operation, our client believes that, contrary to the Zoning Administrator's interpretation, the operations that comprise the "flea market" operations of my client are actually uses allowed (pursuant to a conditional use permit) under three different concepts incorporated into the Frederick County Zoning Ordinance. Essentially, many of the vendors on my client's site are simply providing goods and merchandise (including grocery items) to the general public for personal or household consumption. Such operations are conditionally permitted in the RA zoning district as a "country general store." It is important to observe that nothing in the definition of a "country general store" forbids the operation from being in an open air environment." What is more, at least some of the vendors selling agricultural products at my client's site are selling such products grown from their own farms. Again, such an operation is permitted by conditional use permit in an RA zone as demonstrated above. Finally, the very definition of a flea market includes the selling of antiques. "Antique shops," like wayside stands and country general stores, are permitted with a conditional use permit in an RA zone. Thus, while my client recognizes that it needs to obtain the appropriate conditional use permits for these uses, my client's operations are certainly allowed (albeit conditionally) in the RA district. Unfortunately, as noted in Mr. Cheran's August 31 letter, his interpretation fails to take into account the use permitted by conditional use permit in an RA district as set forth in Section 165-401.03. Instead, by focusing exclusively on Section 165-401.02 (which simply sets forth the "by right" uses available in an RA zoning district, he makes an interpretation that is overbroad and inconsistent with the plain language of the Zoning Ordinance. In summary, my client believes that the Zoning Administrator's interpretation that vendor operations falling under a "flea market" concept as prohibited in the RA district under any circumstances is plainly wrong. As demonstrated above, most if not all of the vendors operating in a flea market are allowed to conduct their operations in the RA district so long as a conditional use permit has been obtained. An interpretation to the contrary ignores the plain text of the Zoning Ordinance applicable to the RA district. Therefore, my client respectfully requests that this Board of Zoning Appeals overturn the interpretation of the Zoning Administrator so as to allow my client to obtain a conditional use permit for its operations. Kevin C. Scott, Chairman September 28, 2009 Page Four (4) On behalf of my client, I wish to thank you for your time and thoughtfiil attention to this application. If you have any additional questions, please do not hesitate to contact me. TpuK/Yours, Silek, Jr. Enclosures Cc (w/ enclosures): Royston Eshel an Properties, L.C. LAWSON AND SILEK, P.L.C. 43 CHESTER STREET POST OFFICE BOX 602 FRONT ROYAL, VA 22630 TELEPHONE: (540) 635-9415 FAcsIMILE:(540)635-9421 E-MAIL: JSILEK*,Q LAWSONANDSILEK.COM October 19, 2009 Mark Cheran Zoning & Subdivision Administrator of Alan+in` 107 North Kent Street Winchester, Virginia 22601 Re: Royston Eshelman Properties — Suggestion for Boundary Line Adjustment Dear Mark: I am writing this letter to follow up on our telephone conversation last week. During; ,sur conversation, I suggested that one solution to the present dilemma would be for Clarke and Frederick Counties to enter into a boundary line adjustment agreement pursuant to Virginia statute and relocate into Clarke County all the property comprising my client's operations You indicated that this proposal may have merit and asked me to send you a written proposal for review and consideration. A boundary line adjustment in this circumstance would have several advantages for all parties involved. To begin, there would not be a great deal of property involved in such boundary line adjustment. One reason for the plat and survey currently underway is to pinpoint the exact location of the Frederick/Clarke County line, which runs across the property comprising my client's operations in an unusual manner. Second, my client's operations have existed on the site fol- ww"I over two (2) dccaUes. A l o-Undary Mie adjusuitelll would sltlti l allow a long-established use to continue in a jurisdiction where such operations are already permitted. Third, a boundary line adjustment mechanism allows the two jurisdictions to address any concerns about my client's operations in a straightforward manner. Finally, a boundary line adjustment would moot the pending BZA appeal while also eliminating the potential for any subsequent litigation. As you and I discussed, in the event that Frederick County were interested in pursuing this option, the BZA matter could be postponed pending a satisfactory conclusion to the boundary line adjustment process. Given the above, I would urge Frederick County to take a serious look at a boundary 1111C adjust hent with Clarke County as a pragmatic solution to an unfortunate situation. Naturally; my client would be happy to cooperate in any way it can. Kindly let me know whether Frederil-k County is amenable to pursuing this approach. Thank you in advance for your thoughtful WINCHESTER ADDRESS: 160 EXETER DRIVE, SUITE 103, P.O. Box 2740, WINCHESTER, VA 22604, TELEPHONE: (540) 665-0050, FACSINULE (540) 722-4051, E -MAH.: TLAWSON@R,LSPLC.COM Mark Cheran October 19, 2009 Page Two (2 ) attention to this proposal, and please do not hesitate to contact me to discuss any additional questions or concerns. aRespe"ull-r�' . Light Cc: Royston Eshelman Properties, L.C.